no respect of persons and as before I observ'd from Aristotle is a Mind without Affection Now the nature of a Dispensation is to favour some to set some at liberty from the obligation of the Law and is a kind of praeterition of others leaving them still under the tye and obligation and obnoxious to the Penalty if they transgress Whereas in a well govern'd Kingdom there ought to be Unum pondus and Una Mensura in distributive as well as commutative Justice It was part of the Oath that was taken by King William the First who is commonly stiled the Conquerour that he would Aequo jure Anglos Francos tractare Which Oath favours nothing of a Conquest nor does it run in the stile of a Conquerour And it is the Oath of a Judge at this day That he shall truly serve the King and his People c. That he shall do Right to every Person notwithstanding the King's Letters that is notwithstanding any Non Obstante It is a Maxim in Law Quo modo aliquid Ligatur eo modo dissolvitur Now a Law being made by Consent of all should not be Dissolv'd again but by the like Consent that is by Authority of the King and Parliament who have the Legislature Dr. Willet in his Synopsis Papismi makes a Difference between a Toleration and a Dispensation That of Moses in case of Divorces was a Tolleration A Dispensation says he must be of as high a Nature as the Institution None but the Law-Maker can Dispence with the Law not he that hath but a share in the Legislature And from hence I shall take occasion to assert and shall endeavour to make good my Assertion by Law that the Lawful Power of Dispensing with an Act of Parliament that concerns the Publick is only in the hands of those that have the Legislative Power I confine my self to such Acts only as concern the Publick as the present Act we have now to do with does in a very high degree And therefore I hold that none can Dispence with such a Law but the King and Parliament and such as they entrust with it I shall begin to prove this by an Act of Parliament which is the highest Resolve and Authority in our Law It is in the Preamble of the Act of 25 Hen. 8. c. 21. the Statute of Dispensations and the Preamble of a Statute is Law as well as the enacting part or body of the Law. It is in effect a Declaration of what was Law before at least it shews the Opinion and Judgment of the Law-Makers which is of high Authority It first utterly disowns and renounces the Pope's long usurped Claim and Pretence of Dispensing with any Person within this Realm even in Matters Spiritual tho' by him practis'd for many Years I desire to observe upon this that long usage by an Usurpation gives no lawful Right But I would further observe too that where it hath been long admitted and used it is in such Case reasonable for none but the Supream Court to undertake it and declare against it In the next place this Act of Parliament does affirm That this Realm of England is subject to no Laws but such as have been made and taken by sufferance of the King and his Progenitors and the People of this Realm at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Use and Custom to the observance of them as to the customed and ancient Laws of this Realm Originally establish'd as Laws of the same by the said Sufferance Consents and Customs And none otherwise This shews the Original of our Common Law. This likewise clearly proves that whatever is imposed upon the People without their Consent hath not the Authority of a Law And it cannot be shewn that ever the People did consent to this Power or Practice of Granting Dispensations But it plainly appears that our Acts of Parliament are so far from approving or countenancing of it that they have often fenced against it altho' in vain hitherto And tho' the Usage have been very Ancient as I have shewn yet that gives it no lawful Authority for this Preamble declares those only are Laws binding to the People that have been Originally establish'd as Laws The Word Originally refers no doubt to our very Primitive Institution which is Common Law or at least to a time so ancient as that the Original cannot be traced out nor shewn and then it shall be presum'd to be the Common Law. Now I have I hope clearly evinced that the very first invention and practice of Dispensations by the Bishop of Rome is not time out of mind nor can the Usage of it here by imitation of the Pope reach up to a Prescription in the judgment of our Law nor by the Rules of it For Sir Edward Cook in his first Instit. Fol. 115. treating of a Prescription and the nature of it says That if there be any sufficient proof of Record or Writing to the contrary albeit it exceed the Memory of any Man living yet it is within the Memory of Man in a legal sence it had its Original since the beginning of the Reign of our King Richard the First that is in the time of King John and King Henry the Third But that which makes it much the stronger is that this Declaration of the King and Parliament against such Dispensations and Laws introduc'd without the King and Peoples Consent does conclude with Negative Words viz. and not otherwise and is exclusive of all other that is that nothing is Law without their Consent And this Statute of Dispensations proceeds further to shew where the true and lawful Power of Granting Dispensations is vested in these words viz. It stands with natural Equity and good Reason that in all Laws humane within this Realm the King and both Houses representing the whole State of the Realm have full Power to Dispense and to Authorize some Person to Dispense with those and all other humane Laws of this Realm and the same Laws to abrogate annull amplifie and diminish as it shall be seen unto the King the Nobles and the Commons of the Realm present in Parliament meet and convenient for the Wealth of the Realm and then it does dispose of the Power of Dispensation in Matters Ecclesiastical to the Archbishop of Canterbury some whereof are to be confirm'd by the King and others that may be good without the King 's confirming And altho' the body or enacting part of this Statute extend only to Causes Ecclesiastical yet the Preamble does reach expresly to all humane Laws This Statute of 25th of Henry the Eighth was made in the time of such a King as we all know by reading our Histories stood highly upon his Prerogative and would never have consented to such a Declaration concerning the Power of Dispensing if it had been a special Prerogative in the Crown and had there
been such a Power in the Crown the King would never have suffered himself to have been depriv'd of it and to have it dispos'd of into other hands by the Parliament and there would have been no need of passing such a Law the King himself alone could easily have transacted all this Matter provided for by this Act of Parliament had he had the sole Power It is true that the Lord Hobart in his Reports Fol. 146. mentioning this Act of Dispensations and taking Notice that by the express words of the Act all Dispensations c. shall be granted in Manner and Form as is prescribed by that Act and not otherwise yet he holds that the King is not thereby restrained but that his Power remains full and perfect as before and that he may still grant Dispensations as King for says he all Acts of Justice and Grace flow from him This and such like Statutes says the Lord Hobart were made to put things into ordinary form and to ease the King of Labour not to deprive him of Power This Opinion of his is grounded upon a presumption that the Power of Dispensing with Laws was always from the beginning a Prerogative inherent in the Crown not examining who was the first Author and the time when it first began and whence we borrowed the use and how there was a time within evident proof of credible and authentick Writers when Dispensations were not in use and so they are within the time of Memory in a Legal Construction and cannot be by Prescription And it is plain every Legal Prerogative must be so by Prescription that is used time out of Memory of Man and whereof there is no sufficient Writing to the contrary But I may appeal to any unbiass'd and equal Judgment upon the reading of this Act especially the Preamble of it whether this Act meerly intended to put things into an ordinary Form and to case the King of Labour or whether it was not to put an absolute stop to the former Practice and does not directly declare and determine where the true Power of Dispensing ever was and therein uses those exclusive words and not otherwise for those words are in the Preamble as well as in the Body of the Act. So that this Construction of the Lord Hobart's That still the King may Dispense alone by himself and that he might have done so by his Prerogative before the making of this Statute and may do so still notwithstanding this 〈◊〉 is directly against the very words of the Statute that says it shall not be otherwise then as the Statute directs and being in the Negative are the stronger And the three Instances or Cases cited by the Lord Hobart all out of Dyer do not come home to the Case of the King 's Granting Dispensations in other manner than the Statute of 25 H. 8. c. 21. hath directed which expresly enacts that they shall not be granted otherwise 1. His first Instance is out of Dyer 211 the Statute of 28 H. 8. c. 15. Appoints that the Commissioners for Tryal of Piracy shall be named by the Lord Chancellor now it happened there was no Lord Chancellor but a Lord Keeper and it was held that he might name the Commissioners by the meaning of this Statute as well as the Lord Chancellor This is under favour but a weak proof of the King's Power or Prerogative of varying from the Directions of an Act of Parliament or dispensing with the Rules prescrib'd by it for it is a meer imaginary variation the Lord Keeper ever having the same Power as the Lord Chancellor and it is not meerly so enacted but declar'd by the Act of 5 Eliz. c. 18. which proves it was Law before And yet some Judges held the Commissioners were not well named but that the Commission was void 2. The second Instance or Authority that the Lord Hobart uses to prove his Assertion that the words and not otherwise in the Statute of Dispensations doe not restrain the King's Power but that he may do otherwise is out of Dyer 225. That Queen Elizabeth might make Sheriffs without the Judges notwithstanding the Stat. of 9 E. 2. this I shall have occasion to examine and speak to more fully hereafter and therefore shall reserve it till then and doubt not to shew it is a mistake and it was done by the Queen in a case of necessity it being in the time of the Plague when the great Officers could not safely meet in the Exchequer as the Statutes require for the chusing of Sheriffs and the Term was held at Hertford and the Report says no Sheriff was named by the Queen for the most part but out of those Names that remained in the Bill for the former Year And the Book only says it was held the Queen might do it by her Prerogative 3. The last Instance that the Lord Hobart gives is out of Dyer 303. b. that the King may grant the Aulnagers Office without a Bill sealed by the Treasurer tho' the Statute of 31 H. 6. c. 5. says the Grant of that Office shall be void without a Bill seal'd by the Treasurer The Resolution of that Point is very obscurely reported but however take it at the strongest this is in a matter that concern'd the King's Revenue and where it may more reasonably be said by the King. May I not do what I will with my own And this Statute may easily be understood to be to put the granting of this Office into an ordinary form and to ease the King of Labour and not to restrain his Power If that may be said in any Case against the express words of a Statute it may be in a Case that concerns meerly his Revenue as this of the Aulneage was In the next place I shall shew that the stream of Dispensations did anciently run in this channel till afterwards it found out another course and that Dispensations with Laws were only in the same hands as had the Legislature that is in the King and Parliament in former times and this answers that Example that hath been used that Almighty God dispens'd with his own Law of the sixth Commandment when he commanded Abraham to sacrifice Isaac God was the great and only Legislator Now the King is not the sole Legislator I shall present you with a very full Precedent and Proof of the Power of Dispensing with Acts of Parliament to be no where else but where the very Legislative Power is And that the Kings have sometimes accepted it from them in some particular cases and for some limitted time and with divers restrictions which is a full acknowment that it belongs only to the Legislative Power to dispence with Laws The Commons for the great Affiance which they repose in the King granted that he by advice of his Lords might make such Toleration touching the Statute of Provisions as to him shall seem good until the next Parliament so as the Statute be repealed in no part thereof
custom to the observance of the same not as to the observance of the Laws of any foreign Prince Potentate or Prelate but as to the customed and ancient Laws of this Realm originally establish'd as Laws of the same by the said sufferance consents and Customs and none otherwise Upon the same ground it is that learned Hooker says that the lawful Power of making Laws to command whole Politick Societies of Men belongs so properly unto the same entire Societies that for any Prince or Potentate of what kind soever upon Earth I use his very words too to exercise the same of himself and not either by express Commission immediately and personally receiv'd from God or else by Authority derived at first from their consent upon whose persons they impose Laws it is no better than meer Tyranny King James the First in his before-mentioned Speech speaks much the same words Laws therefore says Hooker they are not which Publick Approbation hath not made so Approbation may be declar'd says he either by a personal Assent or by others by a Right deriv'd from them as in Parliaments This hath the more Authority being the Judgment in a Point of Religion not of an Historian or Lawyer but of a Reverend Divine and such an one as hath been so great a Champion for Authority and Government and for exact Conformity to Ecclesiastical Laws Some of our late Writers and Preachers have discours'd quite in another strain The Noble Author I just now cited calls the Laws Condescentions and Voluntary Abatements of the King 's Original Power supposing his Power at first was absolute Now that Preamble of that Statute which I just now read is directly contrary in the very word Original Another a certain Lawyer a Knight in a small but bold Treatise of his will by no means allow of any limitation of Power and holds it absurd to say a Government can be mixed or limited A certain Divine and Geographer in his History of the Life of a late Archbishop declares himself much of the same mind with both these and many others have trod since in their steps I therefore thought it very proper and seasonable to shew the Judgment in these Matters of an eminent Divine too a Person in all respects without exception and his Judgment is concurring with all the ancient Authors in our profession of the Common Law who being so learned and so ancient are therefore the most Competent Witnesses of our English Constitution That ancient Author of ours whose Book is stiled Fleta quia in Cartere Fletae de jure Anglicano conscripsit in the time of King Edward the First as learned Mr. Selden has noted in his Dissertatio ad Fletam c. 10. sect 2 3. This Author L. 1. c. 5. tells us Superiorem non habet Rex in Regno nisi Deum Legem Per Legem factus est Rex temperent Reges potentiam suam per Legem Non quod principi placet Legis habet potestatem Non quicquid de voluntate Regis sed quod magnatum suorum Consilio Regia authoritate prestante habita super hoc deliberatione tractatu recte fuerit diffinitum Bracton who was a Judge in the time of King Henry the Third but wrote his Book in the time of King Henry the Second stiles the Laws of England the ancient Judgments of the Just. And Briton Bishop of Hereford who publish'd his Book 5 Edw. 1. by the Command of that King and as written in the King's Name And Sir Gilbert de Thornton who was a Chief Justice in Edward the First 's time and reduced the Book of Bracton into a Compendium And Sir John Fortescu another Chief Justice and afterwards Chancelor in the time of Henry the Sixth writ all to the same effect and almost totidem verbis These Authors discourse altogether of the Imperia Legum as Livy calls it And Laws thus made by an universal consent must needs be most equal and have a far greater veneration paid them by all sorts of men The best men are but men and are sometimes transported with passion The Laws alone are they that always speak with all persons high or low in one and the same impartial voice The Law knows no favourites Hence it is that Aristotle most significantly and elegantly says That the Law is a Mind without Affection that is it binds all alike and dispences with none the greatest Flies are no more able to break through these Cobwebs than the smaller Imperatoria Majestas Legibus armata est says the Introduction to the Imperial Law These are the surest Arms and Guard about a Prince Baldus the great Lawyer says Digna vox est Majestate Regnantis Legibus alligatum principem se profiteri Sir Edward Cook in his 2 Inst. fol. 27. observes that the Nobility of England have ever had the Laws of England in great reverence as their best Birth-right and so says he have the Kings of England as their principal Royalty belonging to their Crown He there mentions our King Henry the First the Son of him that is stiled Conqueror He wrote to Pope Paschal in this manner Notum habeat sanctitas vestra quod me vivente auxiliante Deo dignitates usus Regni nostri Angliae non imminuentur Et si ego quod absit in tanta me dejectione ponerem Optimates mei totus Angliae populus id nullo modo pateretur And fol. 98. there is mention of the Letters which all the Nobility of England by assent of the Commonalty in the time of Edward the First wrote to Pope Boniface viz. Ad Observationem Defensionem consuetudinum Legum Paternarum ex Debito prestiti Sacramenti astringimur quae manutenebimus toto posse totisque viribus cum Dei auxilio defendemus Nec etiam permittimus aut aliquatenus permittemus tam insolita indebita prejudicialia alias in audita Dominum nostrum Regem etiam si vellet facere seu quomodo libet attemptare Sealed with the several Seals of Arms of 104 Earls and Barons And the Noble King Edward the First took no offence at the stout and resolute penning of this Letter but wrote himself to the Pope to the same effect And yet it contains in it a kind of a Non obstante to what the King should do by way of submission and compliance with the Pope Nor is a Just Law any restraint to a Just Liberty it rather frees us from a Captivity and Servitude viz. to that of our Wills and Passions It is true this obligation and binding of the Law is very uneasie to such Men as will be slaves to their Lusts and Appetites They cry out let us break these Bonds asunder and cast away these Cords from us but to such as are virtuous and just and pious the Laws are a Direction and Protection The Orator truly says Legum id circo omnes servi sumus ut liberi esse possimus The true English of
which is that such service is perfect freedom Hence our English Laws in Magna Charta are called Liberties Concessimus omnibus hominibus regni nostri has libertates subscriptas says King Henry the Third in the first Chapter of Magna Charta which Sir Edward Cook expounds to be meant of the Laws of England quia liberos faciunt says he And tho' this Statute of Magna Charta run in the stile of a Grant from the King in the word concessimus for the honour of the King yet as he says they were the Common Laws and Rights of the People before and it was made by the King Lords and Commons as is recited by the Statute of 15 Ed. 3. c. 1. Thus it appears what the true Nature and Properties of a Just Law are of how great Force and Authority a Law ought to be how dear and precious Laws have been heretofore to Prince and People and whence they have their Birth and Original Thirdly I come now to that Notion or Invention of a Dispensation the Power of relaxing or dispensing with a Law and enquire into the Original and Nature of it and the great Mischief that hath arisen from it The Pretence for the Use or Need of a Power of Dispensing is this viz. There is no Providence or Wisdom of Man nor of any Council of Men that can foresee and provide for all Events and variety of Cases that will or may arise upon the making of a new Law. But a new Law may sit heavy upon some particular persons or in some extraordinary Case that may happen let what care can be taken in the penning of it It is enough to commend a Law if it be beneficial to the greater number and be for the publick good Laws are fitted Ad ea quae frequentius Accidunt and not for rare and extraordinary Events and Accidents as the Romans had no Law against Parricide And the Law says better is a Mischief than an Inconvenience By a Mischief is meant when one Man or some few Men suffer by the hardship of a Law which Law is yet useful for the Publick But an Inconvenience is to have a Publick Law disobey'd or broken or an Offence to go unpunished Now from this suppos'd and imaginary defect of Law or some particular mischief or hardship sometimes tho' very rarely happening to some Men which hardship was not foreseen by the Makers of the Law altho' this is oftner pretended and feigned then hapning in truth occasion hath been taken to assert a Power in the Prince or chief Ruler to dispence with the Law in extraordinary Cases and to give ease or relaxation to the person that was too hard bound or tied to a Law for as I observ'd before the Law is of a binding and restraining nature and quality It hath the same specious pretence as a Law made 31 H. 8. c. 8. had which was of most desperate and dangerous consequence had it not speedily been repealed by the Statute of 1 E. 6. c. 12. The Title of that mischievous Act of 31 H. 8. is this An Act that Proclamations made by the King's Highness with the Advice of the Honourable Council meant of the Privy Council shall be obey'd and kept as tho' they were made by Act of Parliament The Preamble recites the King by Advice of his Council had thentofore set forth sundry Proclamations concerning Articles of Religion and for an Unity and Concord to be had among his Subjects which nevertheless many froward wilful and obstinate persons have wilfully contemned and broken not considering what a King by his Royal Power may do and for lack of a direct Statute and Law to coherce Offenders to obey those Proclamations which being still suffered should encourage Offenders to the disobedience of the Laws of God and sound too much to the great dishonour of the King 's most Royal Majesty who may full ill bear it Considering also that sudden Occasions fortune many times which do require speedy Remedies and that by abiding for a Parliament in the mean time might happen great prejudice to ensue to the Realm and weighing that his Majesty which by the Regal Power given him by God may do many things in such Cases should not be driven to extend the Supremacy of his Regal Power by wilfulness of froward Subjects It is therefore thought necessary that the King's Highness of this Realm for the time being with the Advice of his Council should make Proclamations for the good Order and Governance of this Realm of England Wales and other his Dominions from time to time for the Defence of his Regal Dignity as the Cases of Necessity shall require Therefore it is enacted that always the King for the time being with the Advice of his Council whose Names thereafter follow and all the great Officers of State are mentioned by the Titles of their Offices only for the time being or the greater number of them may set forth at all times by Authority of this Act his Proclamations under such Penalties and of such sort as to his Highness and his Council or the more part of them shall seem requisite And that the same shall be obey'd as tho' they were made by Act of Parliament unless the King's Highness dispence with them under his Great Seal Here at one blow is the whole Legislative Power put into the King's hands and there was like to be no further use of Parliaments had this continued Then there follows a Clause that would seem to qualifie and moderate this excess of Power but it is altogether repugnant and contradictory in it self And the Conviction for any Offence against any such Proclamation is directed not to be by a Jury but by Confession or lawful Witness and Proofs And if any Offender against any such Proclamation after the Offence committed to avoid the Penalty wilfully depart the Realm he is adjudged a Traytor And the Justices of Peace are to put these Proclamations into execution in every County And by another Act of 34 and 35 H. 8. c. 23. Nine of the Great Offices are made a Quorum c. for they could not get half the number to act under it The Act of 1 E. 6. c. 12. which repeals the terrible Law begins with a mild and merciful Preamble and mentions that Act of King H. 8. which as this Act of E. 6. does prudently observe might seem to Men of Foreign Realms and to many of the King's Subjects very strict sore extream and terrible this Act of King E. 6. does therefore by express mention of that Terrible Act wholly repeal it And so that Law to use the Lord Bacon's phrase was honourably laid in its Grave And God grant it may never rise again It is very probable that this Terrible Law was drawn by King Henry the Eighth's own hand by that expression in it that the King may full ill bear the Disobeying of his Proclamations and the dishonour done to him by it and by several
and where it is a collateral Suit not depending upon that Record An Action against the Sheriff for an Escape of one taken in Execution this is a dependant Action and is grounded upon the Record of the Judgment given against the Party that escap'd The Sheriff cannot aver any thing against that Record and examine it over again nor can he take any advantage of Error or erroneous proceeding in obtaining that Judgment Saunders Rep. 2 part 101. So in an Action of Debt grounded upon a Judgment or in an Audita quaerela to be reliev'd upon a Judgment And so in our Case this Action of Debt for the 500 l. is grounded upon the Conviction which must stand for truth as long as it remains in force not avoided by Error or Attaint A Writ of Error to reverse a Judgment is a dependant Action In error the Plaintiff may not averr any thing against the Record Mullens versus Weldy Siderfin's 1st part 94. Error was sued in the Kings-Bench to reverse a Judgment given in the Palace-Court And the Plaintiff in Error assign'd for Error that the Duke of Ormond who is principal Judge of that Court by Patent was not there It was agreed by the Court that it might not be assign'd for Error for it was contrary to the Record But per Cur. in an Action of Trespass or false Imprisonment which says that Report are collateral Actions he may falsifie and assign that if he be taken upon such Judgment So if a man be indicted and convict of an Assault and Battery and afterwards the person so assaulted brings his Action for the Battery this hath no dependance upon the Indictment or Conviction for it may be sued though there were no Indictment but is a distinct and collateral Suit. The Indictment and Verdict is no Estoppel nor can so much as be given in Evidence as is held by the whole Court in the Case of Sampson versus Yardley and Tothill 19 Car. 2. B. R. Kebles's 2 part 384. The like in an Appeal of Murder Kebele's 2 part 223. Another Penalty upon the Offender against this Statute of 25 Car. 2. is That he shall be disabled to sue in any Action Now suppose a person convict at the Assizes sues an Action may not the Defendant in that Action take the advantage of that Disability and plead the Conviction As in Case of an Outlawry pleaded in Disability there need not be set forth all the proceedings in that Suit wherein the Plaintiff was outlawed but he may plead the Record of the Outlawry and rely upon it and it shall not be examin'd whether there was any just cause to sue him to the Outlawry or not The Indictment the Defendant's Plea to it and the Verdict upon it have determin'd the matter of Fact that the Defendant is guilty of the Offence against this Act of Parliament The Act it self hath pronounc'd the Judgment which consists of many particulars one whereof is That the Defendant shall forfest 500 l. to him that will sue for it And the Action of Debt for the 500 l. brought by the Plaintiff grounded upon all these is in the nature of an Execution And all these put together are not several and distinct Suits but in effect all but one Suit and Process one depending upon the other The second Point is Whether the Dispensation pleaded by the Defendant be a good Bar to the Action of Debt And this is properly called The Matter in Law and the great Point of the Case for which I refer the Reader to my Argument at large POSTSCRIPT BEING SOME Animadversions UPON A Book writ by Sir EDW. HERBERT Lord Chief Justice of the Common Pleas ENTITULED A short Account of the Authorities in Law upon which Judgment was given in Sir Hales's Case SINCE the finishing of my Argument about the Power of Dispensing with Paenal Statutes a Book came to my hands touching the same subject entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edward Hales his Case written by Sir Edward Herbert Chief Justice of the Common Pleas in vindication of himself And although I am of opinion that the substance of all the Arguments contained in the said Book are fully answered in my aforesaid Discourse yet I hold it necessary to make some Animadversions upon the said Book and to point out readily to the Reader the several Pages of my Discourse wherein the Arguments of the Chief Justice are more directly and particularly treated of and answered And there being great Reverence justly due to a Person that bears so high a Character as also to a Judgment given in that Superiour Court of the King's Bench and by advice of all but two of the rest of the Judges as I now hear some short Apology had need be used for that freedom I have taken to animadvert upon it being as I am but in a private station In short therefore I have not undertaken it out of any vain conceit of my own Abilities but out of a sincere desire to inform such as in the approaching Parliament are like to have this great Case in Judgment before them and some may possibly not be at leisure as I have been to study the Case the matter being of a mighty importance Nor have I entred the Lists upon any contentious humour or taking any advantage of the late Happy Change of publick Affairs I am I thank God more inclin'd to commiserate the Distress that may befal any persons by the change of the times it having been my own case so lately although they differ from me in Judgment or Interest I am very far from insulting over any whatever hard usage I my self have met with Nemo confidat nimiûm secundis Nemo desperet meliora lapsus My Apology is this 1. I was engaged in the Argument before the coming forth of this Book and it happening into my hands before my publishing of my Discourse I could not decline the observing something upon it without being suspected to have given up the Cause 2. The Lord Chief Justice himself hath by his Book given fresh occasion fairly to discuss the point again by declaring that he expects as we all do that it will receive a disquisition in Parliament 3. And as the Chief Justice hath endeavour'd with as much as can be said to give the World satisfaction in the justice and right of the Case to maintain the Judgment given so he is well known to be of that ingenuity and good temper and candour as willing to receive a satisfaction if any further Argument to the contrary may be so happy as to convince him The Chief Justice Herbert pag. 6. gives us the Definition of a Dispensation out of Sir Coke's 11th Report fol. 88. viz. Dispensatio mali prohibiti est de jure Domino Regi concessa propter impossibilitatem praevidendi de omnibus particularibus And again Dispensatio est mali prohibiti provida relaxacio utilitate ceu
and shew the great Occasion and Necessity for the Making of it the Scope and Design of it the excellent Remedy it does prescribe and the great Benefit and Security that might arise to the Nation from it were it duly observ'd Secondly I shall then discourse briefly of the Nature of Law in general as far only as may be useful and pertinent to our present Case and of the great Force and Authority that a Law ought to have and of the great Veneration that should be paid to it especially if the True Religion and the Honour of Almighty God the Safety of the Government and the Publick Good and Peace of the Nation depend upon it as they all do upon this Act of 25 Car. 2. Thirdly In the next place I shall give an Account of the True Nature as near as I can and of the Original and Growth of the Notion or Invention call'd a Dispensation and who were the first Authors of it and about what time it began I shall endeavour to shew the right use of it if there be any and where the just Power of granting Dispensations does reside as also the abuse of it and how that according to the late Practice these Dispensations are contrary and repugnant to the Nature and Properties of Law tho' they pretend themselves to be Law they have a different Original and Foundation and do indeed subvert Law. First For the Occasion and Necessity for Making of this Act of Parliament and the Scope and Design of it and the Ends aimed at they all appear in the Preamble The Preamble distinguishes the King's Subjects into two sorts 1. Some from whom there are great Dangers 2. Those who are the Persons subject to those Dangers The Dangers are from Popish Recusants those who are threatned by those Dangers the Act terms them his Majesty's good Subjects It would be needless to tell what those Dangers are and whence they arise All the times since the Reformation have abundantly discover'd what the Dangers are There have been a multitude of Acts of Parliament made that have still been fencing against those Dangers which do sufficiently point them out so do the frequent and incessant Addresses from every Parliament for many Years setting forth the Dangers and all our Histories and Publick Writings and especially those written and published by his now Majesty's Royal Grandfather King James the First and a multitude more but above all the sad event of things and what we all see is come to pass these disclose to all the World what the Dangers were and the great need of a further Remedy Their destructive Principles and their desperate Designs and Practices do abundantly testifie the Danger from the one sort and the just fears of the other sort of Subjects The Scope therefore and the great End that our Act of Parliament had is to prevent the Dangers from the one and to quiet the Minds of the other many former Acts of Parliament which had the same end and purpose proving ineffectual The Remedy provided is very suitable and the likeliest and most effectual that either the Wisdom or Supreme Authority of the King and Parliament could devise and the very Remedy points out the danger The Danger would be at the heighth of it if the dangerous Principles and Practices should but arrive at the Power and Authority and gain that into their hands and it was growing apace towards it The wise and proper Remedy therefore provided by the King and Parliament is first to discover who are Popish Recusants to offer a Trial and Test to all that should be in any publick Trust and Authority for it was suspected that there were many Papists under the disguise of Protestants And in the next place so to Fence and Guard the Power and Authority and all Publick Trusts in the Nation that they might by no means come into the hands of the Papists Persons entrusted with the Power and Authority over the Nation had need give a signal Testimony of their Loyalty and Fidelity to the King and Government and of their true Zeal for the Religion establish'd by Law. The Test as to their Loyalty are the two Oaths of Supremacy and Allegiance and neither of these are new Tests The Test as to Religion and the true Worship of God are likewise two the Receiving of the Blessed Sacrament and the Subscribing a Declaration against the Doctrine of Transubstantiation The Temper and Moderation shewn by his late Majesty and both Houses in this Act of Parliament deserves to be observ'd It is not like the Leges Draconis written in Blood this is no Sanguinary Law. It does not proceed against them with Fire and Faggot It does not disturb them in their Estates and Possessions it does not deprive them of the Liberty of their Persons Nay it does not hinder them from the Exercise of their own Religion if it may be so called I speak as to our present Act of 25 Car. 2. only It lets them live quietly in their Habitations without so much as putting any Oath or Test upon them so long as they live private men It only requires that if they will be entrusted with Power and Authority they should give some just and reasonable Security and Assurance that they will be true to the Religion and the Government establish'd If they will be medling with the Power without giving such security then at their Peril be it The Law pronounces them uncapable and disabled and inflicts Penalties upon such as shall presume to violate this Law. And it is worth the noting how sollicitous and intent the Makers of this Law were that this Test and Tryal might be taken and performed with great solemnity and that the Law might not be eluded with any Arts and Tricks that no Cheat might be put upon it All this shews that the Law-makers had great expectation from this Law. The Oaths are to be taken in one of the two highest Courts of Westminster-Hall the very Hours of the Day are limited when they must be taken that is when the Courts are usually fullest during the taking of them all Pleas and Proceedings are to cease There is the like care taken concerning the receiving of the Sacrament and of the certifying of it and plentiful proof to be made of it and then the recording of it And the like for subscribing the Declaration against the Doctrine of Transubstantiation It were great pity that after all these pains they should signifie just nothing and that so high an Authority should be made ridiculous But after all this securing against the Danger from Popish Recusants how shall we do to secure against the Danger of Dispensations Suppose this Act had contain'd a Clause in it declaring that all Dispensations and Grants with Non obstante's to the contrary of this Law should have been ipso facto void and had inflicted Penalties upon such persons as should have procur'd them would this have
Distinction and weigh the Reasons so given we shall find it is without any just ground The damage done to the particular person in the Cases past in the first part of this distinction are meerly his own proper and peculiar damage and he is intituled to his particular Action for it in his own proper personal Right and therefore if he discharge and dispense with them it is no wrong to any other man. He may do what he will with his own But the Cases in the second part of this Distinction are where the King hath a right to the Suit and the offence and damage are said to be to him only But are they so as the former in his own personal right as his Lands and other Revenues are or are they to him but as a Trustee for the Publick for which reason he is called Creditor Poenae and may he therefore upon the like reason dispense with them or dispose of them as a Subject may do with his own particular Interests Again Shall a publick Damage and Injury to the whole Nation be more dispensable by the King than the loss of one private man fuit haec sapientia quondam Publica privatis secernere And therefore in my apprehension the King cannot in such Cases of Dispensations be truly said to wrong none but himself and it is not agreeable to the Definition before given Utilitate Compensata for the King wrongs the whole Realm by it Where if he grants a Dispensation with a Penal Law of the first sort of this distinction he only wrongs some particular persons The Cases and Authorities for Dispensations in our Books that were granted in ancient times will generally be found to be only where the Penal Statutes were made for the King 's own proper interest and benefit As his dispensing with the Statute of Mortmain For in such Cases it was to the King 's own loss only in Cases where the King might by Law have given away his Lands or Services So the King may in his Patent of Grant of Lands dispense with the Statutes that require there shall be mention of the true Values of them And by a Non-obstante to those Statutes which is now generally used the King does in effect declare that it is his pleasure to grant those Lands whatever the Value of them be more or less and the Statute does by express words save a liberty to the King in that Case The King is not a Trustee for others in such Cases nor can these Dispensations be said to be directly to the damage of the Publick And such Penal Laws as meerly concern the King 's own Revenue or Profit may justly be thought to be intended to be made only to put the King's matters into an ordinary method and course and so save the King a labour as the Lord Hobart says and so prevent the King 's being surpriz'd or mis-inform'd when Patents are gained from him and not design'd to tye the King's hands or to restrain his power as out of all doubt was done and intended by the Law-makers in our Act of 25 Car. 2. But in all the late Cases and Authorities which we meet with in our Books concerning Non-obstante's and Dispensations as in the time of King Henry the Seventh and so downward to this day we shall find them practising upon such Penal Statutes as meerly concern the Publick Good and Benefit and the Laws of such a nature by the breach of which the whole Nation suffers While some particular persons it may be by giving a large Fine or a yearly Sum obtain the favour to be dispens'd with and exempt from a Penal Law while all others continue to be bound by it As for Example Where a Statute forbids the Exportation of Wool or of Cloth undyed or undress'd under a Penalty such a Law is greatly for the Publick Good and it takes care that our own People shall have Employment and Maintenance Yet this is such a Law as according to the receiv'd Distinction the King may dispense with there being no particular damage to one man more than to another by breach of such a Law although it be a mighty damage to the whole Nation For by such a Dispensation the person so dispens'd with to Export such White Cloth undyed will have the sole Trade which before the making of that Penal Statute was equal and common to all I wish the House of Commons would enquire what vast Riches have been heretofore gotten by such as have obtain'd the Dispensations with this Penal Statute besides the Sums they paid to the Crown for them These are meer Monopolies In such a Case it may rightly be applied That Sin taketh occasion by the Law. It had been better for the Nation that such Laws were never made being no better observ'd for here again the Dispensation is neither Utilitate nor Necessitate pensata Look into the Case of Thomas and Sorrell and you will find few or no Cases of Dispensations cited out of our Books but of the time of King Henry the Seventh and much more of very late times so that the ill practice is still improving and stretching The Lord Chief Justice Herbert in the next place pag. 9. proceeds to mention the great Case of 2 Hen. 7. a Resolution of all the Judges in the Exchequer-Chamber upon the King 's dispensing with the Statute of 23 H. 6. cap. 8. That no man should be a Sheriff above one year This is the great Leading Case and Authority upon which the main stress is laid to justifie the Judgment given in Sir Edward Hales his Case I would avoid repeating what I have already so largely said to this Authority to which I must refer my Reader by which I hope it is most evidently made out that the King neither hath nor never had any just Right or Power to elect Sheriffs But the right of Electing was anciently and originally belonging to the Freeholders of the several Counties and since it was unjustly taken from them as they have ever been on the losing hand it hath been lodged in the great Officers of the Realm as the Lord Chancellor Lord Treasurer Lord Privy-Seal and the Judges c. as appears by the several Statutes And they are to make such Choice every year in the Exchequer on a day appointed by the Statute for that purpose So that the Sheriffs are by those Statutes to continue in their Offices for one year only And the King cannot hinder such Election Only by his Patent or Commission to the Sheriff hath he used to signifie to the Sheriff himself that is so chosen and to publish to all others who the person is that is so chosen This is all the use of the Patent but it is the proper Election of those great Officers that truly vests them in their Office And it does as clearly appear that when former Kings have dispens'd with a Sheriffs continuing in his Office for longer than one year contrary to the
a Prescription nor is there any arguing a Paritate rationis in such Cases and which have their force meerly from ancient and constant Usage It is a Rule at Common Law Ubi eadem est ratio ibi idem Jus But this Rule doth not hold in Customs and Prescriptions In the Case of Bayly and Stevens in Croke Jac. 1. fol. 198 it was held per Curiam that where Lands in Borough English descend to the youngest Son and he dies without Issue that the Land in such Case shall not go to the younger Brother without a particular Custom but the elder Brother shall have it for the usage had been in the one but not in the other Case yet these two Cases are very near of kin Now this Prerogative of dispensing with Acts of Parliament in the original use and exercise of it was but in very few Cases and those which more directly concern'd the King himself immediately in his Revenue or the like which were Cases of no great Consequence and such wherein the Law-Makers in making their Laws might be easily understood not to intend to abridge the King of his Power but to ease him rather of Labour and to put things into an ordinary course which yet the King might depart from if he were so minded and if he did accordingly signifie his Pleasure by granting an express Non Obstante the Act of Parliament to the contrary and making particular mention of the Act Unusquisque renunciare potest Juri pro se introducto Or in Cases where there is no disability impos'd upon a Person by the Act but only a pecuniary Penalty given to the King and forfeited by the Subject transgressing the Act where the King is Creditor poenoe it seems more reasonable that the King may dispense with the Penalty that will be due to himself And these and such like are the only Instances given in that great Case of 2 H. 7. But to dispense with an Act of Parliament made in a Case of the highest concernment to the Publick that can be wherein Religion and the Government are so deeply concern'd and where the King himself and the Parliament have thought fit to disable any Person to do to the contrary and so pronounc'd it and have put an incapacity upon Persons and adjudged the thing done to the contrary void this hath been of latter times and but of late found out and practis'd and is not warranted by any Prescription I shall cite some Resolutions to this purpose that the King cannot dispense with Disabilities and Incapacities imposed upon any Person by Act of Parliament The Lord Hobart's Reports fol. 75. in the Case of the King against the Bishop of Norwich Res. That if an Incumbent were guilty of Symony in obtaining a Benefice he was made incapable of that Benefice for ever by the words of the Statute of 31 Eliz. c. 6. Paragr 5. And the Case of Sir Arthur Ingram was cited who bought the Office of Cofferer he was holden by Egerton Lord Chancellor and Coke Chief Justice uncapable of that Office by force of the Statute of 5 E. 6. c. 16. tho' he had a Non Obstante and the reason there given is in these words For the Person being disabled by the Statute could not be enabled by the King And yet the Office of Cofferer is a special Service about the King's Person and his Treasure The Lord Chief Justice Vaughan in his Reports of the Case of Thomas and Sorrel fol. 354 355. gives this for the reason why the King cannot dispense with a Man to buy an Office contrary to the Statute of E. 6. nor with one Simoniacally presented to hold that Living or to be at any time after presented to it nor with any of the House of Commons not to take the Oath of Allegiance according to the Statute of 7 Jac. 1. c. 6. Because says he the Persons were made incapable to hold such Office or Living and a Person incapable is a dead Person and no Person at all to that wherein he is incapable And a Member of the House of Commons is by 7 Jac. Persona inhabilis 1. Inst. fol. 120. In the Case of the Simonist Sir E. C. says The Act so binds the King as that he cannot present him that the Law hath disabled for ever after to be presented to that Church The words of the Act be He shall be from thenceforth adjudged a disabled Person in Law to have or enjoy the same Benefice And the Party being disabled by the Act says Sir E. C. cannot be dispens'd withal by any Grant by a Non Obstante as it may be where any thing is prohibited sub modo as upon a Penalty given to the King. The Case of Sir John Bennet does not at all contradict these Authorities It is Croke Car. 55. Sir John Bennet by Sentence in the Star-Chamber was made incapable of any Office of Judicature for Bribery Res. by all the Judges and Barons that by the King's Pardon all Inabilities are discharg'd because the Sentence could not take the Office from him being Freehold over which the Court had no Power So that after so often declaring by several Acts of Parliament Grants and Patents made contrary to their Acts to be void and all Dispensations and Non Obstante's to the contrary of the Laws made by them to be void and inflicting Penalties upon such as should obtain those Grants and Non Obstante's or make use of them as appears by a multitude of Acts and all these too weak and all in vain by the Judges allowance of these Non Obstante's the Parliament had no other sence against these Non Obstante's but to fix a disability in the Persons and to make them uncapable of taking the benefit of such Grants and this hath held good till now but now they break through this too And as I observ'd in the Pope's Exercise of his Power of Dispensing that it was used with some moderation at first in Cases that seem'd to be of great necessity only but at last by degrees it grew to be intolerable and unlimited So the like may be observ'd in the use of this Prerogative 3. Instit. fol. 236 in the Chapter of Pardons by divers Acts of Parliament the King's Power of Granting Charters of Pardon hath been restrained as by 2 E. 3. c. 2. 10 E. 3. c. 2. 14 E. 3. c. 14. 13 R. 2 Stat. 2. c. 1. these are ancient Statutes It hath been conceiv'd says Sir E. C. which we will not question says he that the King may dispense with these Laws by a Non Obstante Yet Sir E. C. there declares That he found not any such Clauses of Non Oâ—stante to dispense with any of these Statutes but of late times This shews that it is a growing mischief and had not been anciently used as it ought to have been to make it a good Prescription and Prerogative I shall now examine the Authorities and Cases that are cited in defence
of this Prerogative and Power of dispensing with a disability impos'd by Act of Parliament for I do not purposely dispute it in any other Case but as they are coincident with this The first that we meet with is that of 2 H. 7. fol. 6. and it was by all the Justices in the Exchequer-Chamber The Case thus King Edward the Fourth granted the Office of Sheriff of a County to the Earl of Northumberland for the Life of the Earl and the Justices held the Patent good there being a Non Obstante in it to the Statutes Let us look into the Statutes that forbid a Sheriff to continue in his Office longer then one Year There had been several ancient Statutes made to that purpose but they all prov'd to be of little effect for Patents were still granted to hold the Office of a Sheriff for a longer time than one Year At length came the Stat. 23. H. 6. c. 8. which recites the former Statutes forbidding any Persons continuance in the Office of Sheriff above one Year and observing the great Oppressions and Abuses to the People that did arise from it and how that yet they were granted contrary to those Statutes This Statute therefore of 23 Hen. 6. ordains that those Statutes shall be duly observ'd And further ordains That if any occupy that Office contrary to those Statutes or to the effect or intent of any of them he shall forfeit two hundred Pound yearly as long as he occupieth contrary to any of those Statutes and that every Pardon granted of that Forfeiture shall be void and that all Patents made of the Office of Sheriff for Years or any longer time shall be void any Clause or word of Non Obstante in any wise put or to be put in such Patents notwithstanding and every such Person is thereby disabled to bear that Office. Nothing could be penn'd stronger than this Statute and it is a Law made by the Supream Legislative Power of the Nation and it expresses the former granting of Non Obstante's to be a great abuse and to be contrary to Law. Yet contrary to the express words and clear intent and meaning of this Statute did all the Judges resolve in 2 H. 7. That by a Non Obstante a Patent for a longer time than a Year should be good of the Sheriffs Office. The King and both Houses were of Opinion that they could make a Non Obstante in such Case void The Judges are of a contrary Opinion that a Non Obstante shall make void the Statute Here is an Inferiour Court over-ruling and controuling the Judgment of a Superiour Court. The Judges who are but Jura dicere contradict those who have the Power Jura dare as well as Jura dicere and of Correcting the Errors of the highest Court in Westminster and controuling their Judgments The Statute was a meer idle nugatory thing if it were not to restrain the granting of a Non Obstante if it did not that it did nothing The King himself alone if he had pleas'd could without any Act of Parliament have reform'd the Abuse by refusing to pass any such Patents for a Sheriffs continuing in his Office longer than a Year But the King was sensible of the Abuses and therefore willing to be restrained from passing any more such Patents and to avoid any importunity that might be used for the obtaining any such Patents and therefore consented that a Law should pass to make such Patents void And after all shall the King if he pleases still make the like Grants Why then the Act was of no manner of use and operates nothing and the Resolve of the Judges has made the Act a meer idle vain thing But the twelve Judges in 2 H. 7. have so resolv'd and the only use they would allow to all these Acts of Parliament is no more than this that if the King grant a Patent to one of the Sheriffs Office for more than one Year and there be no Non obstante in the Patent that then for want of a Non obstante the Patent should be void by those Acts of Parliament which otherwise would have been good had not those Acts made them void But how easie would it be for one that obtains such a Patent to get the Non obstante to be inserted and who would accept such a Patent without a Non obstante and to whom would the Non obstante be denied to whom such a Patent is granted the Lord Hobart in the Case of Needler against the Bishop of Winchester fol. 230. says it is denied to none and that it is in the power of the Attorney-General The Reasons given by the Judges in 2 H. 7. for that resolution are because the King had always used such a Prerogative of dispensing with the Acts of Parliament that required the true value of the Lands and the certainty of the Lands to be mentioned in his Grants of Lands and with the Acts concerning the shipping of Wool and pardoning of Murder without express mentioning of the Murder These Cases are nothing alike but of a trifling consideration in respect of the Act we have in hand of 25 Car. 2. And in these Cases the Penalty and Forfeitures are given to the King and they concern the King's profit only to dispence with them but in our Case the Safety of the Government salus populi and the maintaining of the true Religion establish'd by Law are all concern'd and so the Case is not alike And to compare this with those Cases is parvis componere magna This Opinion and Resolution of the Judges in 2 H. 7. has been the Foundation of all the like Opinions that have since that time been given of the King's Power of Dispensing with Disabilities and Incapacities impos'd by Acts of Parliament Upon what ground the Justices held the Patent of the Sheriff's Office good to the Earl of Northumberland for Life does not appear whether because it had formerly been an Office of Inheritance and so within the Exception in the Statute of 23 H. 6. or whether by virtue of a Non obstante to the Statutes as Ratclif only argues for the rest say nothing of the Non obstante Some Resolutions have been to the contrary of that of 2 H. 7. as in the Case that I cited of the King against the Bishop of Norwich in the Lord Hobart's Reports and the Case of Sir Arthur Ingram where it was adjudged that the King could not dispence with a Disability And the Book of 2 R. 3. fol. 11 12. concerning Waterford in Ireland is of the King's Power to dispence with an Act of Parliament where the Forfeiture is given only to the King so it comes not home to our Case This Resolution of the Judges in 2 H. 7. was the Precedent and leading Case to all the subsequent Opinions and was the Foundation of them and they all must stand and fall by it Now it will be very